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Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Luis Angel Ayora

Queens, New York

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File No.: EB-FIELDNER-13-00010276

NAL/Acct. No.: 201532380001

FRN: 0024507154

* NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: April 14, 2015 Released: April 14, 2015

By the District Director, New York Office, Northeast Region, Enforcement Bureau:

INTRODUCTION

* We propose a penalty of $20,000 against Luis Angel Ayora for apparently operating a pirate FM radio station in Queens, New York. Pirate radio operations may interfere with and pose competitive harm to licensed broadcasters and undermine the Commission's ability to manage the nation's radio spectrum. The Commission repeatedly warned Mr. Ayora that pirate radio operations are illegal, but he nevertheless continued to operate his unlicensed station. The fact that Mr. Ayora continued to operate without authorization notwithstanding the Commission's warnings demonstrates a deliberate disregard for the Commission's authority and its rules, warranting a significant penalty.

BACKGROUND

* Mr. Ayora has a history of operating unlicensed FM radio stations in Queens, New York. In 2013, Mr. Ayora received three Notices of Unlicensed Operation for operating a pirate station on 91.9 MHz from various locations within Queens. On May 29, 2014, in response to complaints of unauthorized operations, agents from the New York Office located the source of radio transmissions on 91.9 MHz to an FM transmitter antenna located at an apartment building at 41-15 Warren Street in Queens. The agents took field strength measurements of the station's signal and determined that it exceeded the limits for operation under Part 15 of the Commission's rules (Rules) and therefore required a license. According to Commission records, no authorization had been issued to Mr. Ayora, or to anyone else, for the operation of an FM broadcast station at or near this building. Agents spoke to the owner of the building, who identified Angel Ayora as the owner of an unauthorized radio transmitter located in the basement. The owner of the building called Mr. Ayora, who came to the building to claim the equipment. Mr. Ayora admitted that he owned and installed the equipment and operated the unlicensed station. The agents delivered a Notice of Unlicensed Operation to Mr. Ayora and verbally warned him that operation of the unlicensed FM radio at 41-15 Warren Street station violated Section 301 of the Communications Act of 1934, as amended (Act), must cease immediately, and could subject him to significant forfeitures. Mr. Ayora did not respond to the Notice.

* On January 13, 2015, in response to additional complaints of unlicensed operations, agents from the New York Office located the source radio frequency transmissions on the frequency 91.9 MHz to a multi-family dwelling at 40-54 Junction Boulevard in Queens. The agents observed a coaxial cable running from the dwelling to an FM transmitter antenna. The agents took field strength measurements of the station's signal and again determined that it exceeded the limits for operation under Part 15 of the Rules and therefore required a license. The agents heard the station playing advertisements and identifying itself as "Impacto 2," a station name used by Mr. Ayora during previous unlicensed operations on 91.9 MHz. A check of the Commission's records confirmed that no authorization had been issued to Mr. Ayora, or to anyone else, for the operation of an FM broadcast station at or near this residence. On February 18, 2015, the New York Office issued a Notice of Unlicensed Operation to Mr. Ayora stating his operation of a radio station at 40-54 Junction Boulevard on frequency 91.9 MHz violated Section 301 of the Act, must cease immediately, and could subject him to significant forfeitures. Again, Mr. Ayora did not respond to the Notice.

DISCUSSION

* We find that Mr. Ayora apparently willfully and repeatedly violated Section 301 of the Act by operating a pirate FM station in Queens. Section 503(b) of the Act provides that any person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation, or order issued by the Commission thereunder, shall be liable for a forfeiture penalty. Section 312(f)(1) of the Act defines "willful" as the "conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate" the law. The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act, and the Commission has so interpreted the term in the Section 503(b) context. The Commission may also assess a forfeiture for violations that are merely repeated, and not willful. The term "repeated" means the commission or omission of such act more than once or for more than one day.

A. Mr. Ayora Apparently Violated Section 301 of the Act by Operating an Unlicensed Broadcast Station

* We find that the evidence in this case is sufficient to establish that Mr. Ayora willfully and repeatedly violated Section 301 of the Act. Section 301 of the Act states that no person shall use or operate any apparatus for the transmission of energy or communications or signals by radio within the United States, except under and in accordance with the Act and with a license granted under the provisions of the Act. Agents from the New York Office determined that Mr. Ayora operated an unlicensed broadcast station on 91.9 MHz on separate occasions from 41-15 Warren Street and 40-54 Junction Boulevard in Queens. Commission records reveal that no license or authorization was issued to Mr. Ayora, or to anyone else, to operate a radio station on 91.9 MHz at either of these locations. As a result, we find that Mr. Ayora apparently willfully and repeatedly violated Section 301 of the Act by operating radio transmission equipment without the required Commission authorization from multiple locations in Queens.

* Proposed Forfeiture

* Mr. Ayora's repeated unauthorized operation of a pirate FM station warrants a significant penalty. Section 503(b)(2) of the Act authorizes us to assess a forfeiture against Mr. Ayora of up to $16,000 for each day of a continuing violation, up to a statutory maximum of $122,500 for a single act or failure to act. In exercising our forfeiture authority, we must consider the "nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require." In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator.

* The Commission's Forfeiture Policy Statement and Section 1.80 of the Rules set a base forfeiture of $10,000 for operation of a radio station without an instrument of authorization. However, the fact that Mr. Ayora would commit the same violation multiple times after being warned repeatedly that such actions violate the Act demonstrates not only the egregiousness of the violations but also a deliberate disregard for the Act and the Commission's authority, warranting a significant upward forfeiture adjustment. Therefore, applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that Mr. Ayora is apparently liable for a forfeiture in the amount of twenty thousand dollars ($20,000).

ORDERING CLAUSES

* Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules, Luis Angel Ayora is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty thousand dollars ($20,000) for willful and repeated violations of Section 301 of the Act.

* IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Luis Angel Ayora SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 12 below.

* Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Luis Angel Ayora shall also send electronic notification on the date said payment is made to NER-Response@fcc.gov. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters "FORF" in block number 24A (payment type code). Below are additional instructions that should be followed based on the form of payment selected:

* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

* Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.

* Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

* Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

* The written statement seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement to Federal Communications Commission, Enforcement Bureau, Northeast Region, New York Office, 201 Varick Street, Suite 1151, New York, NY 10014, and include the NAL/Acct. No. referenced in the caption. The statement must also be e-mailed to NER-Response@fcc.gov.

* The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting principles (GAAP); or (3) some other reliable and objective documentation that accurately reflects the petitioner's current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted.

* IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Luis Angel Ayora at his address of record.